In Re: Steven D'Agostino v.

• Court: Court of Appeals for the Third Circuit
• Decided: July 19, 2022
• Docket: 21-3178
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-3178 __________

In re: LAURENCE A. HECKER, Debtor

STEVEN D’AGOSTINO, Appellant ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-20-cv-06330) District Judge: Honorable Freda L. Wolfson ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) June 14, 2022

Before: MCKEE, SHWARTZ, and MATEY, Circuit Judges

(Opinion filed: July 19, 2022) ___________

OPINION * ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Steven D’Agostino, proceeding pro se, appeals from the District Court’s order

affirming the Bankruptcy Court’s adverse ruling and the District Court’s order denying

his subsequent motion for reconsideration. We will affirm.

In May 2010, Laurence A. Hecker filed for Chapter 7 bankruptcy in the United

States Bankruptcy Court for the District of New Jersey. The Bankruptcy Court appointed

the appellee, Bunce D. Atkinson, as trustee of the estate. In January 2011, Hecker

received a discharge and Atkinson issued a report of no distribution. Approximately nine

years later, D’Agostino, a creditor of Hecker, filed a motion to reopen Hecker’s

bankruptcy case in order to pursue a state-court action against Atkinson. 1 In the motion,

D’Agostino claimed that Atkinson had breached his duties by failing to provide him with

notice of various proceedings in the bankruptcy case. The Bankruptcy Court denied

D’Agostino leave to pursue the proposed action on the ground that he failed to make a

prima facie case that his claims were “not without foundation.” In re VistaCare Grp.,

LLC, 678 F.3d at 232. Specifically, the Bankruptcy Court concluded that Atkinson was

shielded from liability under the doctrine of qualified immunity. D’Agostino sought

reconsideration, but the Bankruptcy Court denied relief. Upon review, the United States

District Court for the District of New Jersey affirmed. D’Agostino sought

1 It is undisputed that D’Agostino was required to obtain permission from the Bankruptcy Court before pursuing his suit against Atkinson. See Barton v. Barbour, 104 U.S. 126, 128 (1881) (barring suit against a receiver unless “leave of the court by which he was appointed [was] obtained”); In re VistaCare Grp., LLC, 678 F.3d 218, 224 (3d Cir. 2012) (holding that the Barton doctrine extends to lawsuits against a bankruptcy trustee for acts done in the trustee’s official capacity). 2 reconsideration of that order as well but was likewise denied relief. This appeal

followed.

The District Court had jurisdiction over the appeal from the Bankruptcy Court

under 28 U.S.C. § 158(a), and we have jurisdiction under 28 U.S.C. §§ 158(d) and 1291.

On appeal, “we ‘stand in the shoes’ of the District Court and review the Bankruptcy

Court’s decision.” In re Global Indus. Techs., Inc., 645 F.3d 201, 209 (3d Cir. 2011) (en

banc) (citations omitted). We review a bankruptcy court’s decision to deny a motion for

leave to sue a trustee for abuse of discretion. In re VistaCare Grp., LLC, 678 F.3d at 224.

We review the District Court’s denial of reconsideration for abuse of discretion. See In

re Fowler, 394 F.3d 1208, 1214 (9th Cir. 2005).

The Bankruptcy Court did not abuse its discretion here. First, we agree with the

Bankruptcy Court that D’Agostino failed to make a prima facie case that his claims

against Atkinson were “not without foundation,” In re VistaCare Grp., LLC, 678 F.3d at

224 (quotation marks omitted), as Atkinson was entitled to qualified immunity, see In re J

& S Props., LLC, 872 F.3d 138, 143 (3d Cir. 2017). “To overcome qualified immunity, a

plaintiff must plead facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164,

168–69 (3d Cir. 2016) (quotation marks omitted). As the Bankruptcy Court explained,

D’Agostino did not claim that Atkinson violated any statutory rights. While he did claim

that Atkinson’s failure to notify him of proceedings amounted to a due process violation,

it was Hecker’s duty, not Atkinson’s, to provide him with notice. See 11 U.S.C. § 704(a)

3 (listing the trustee’s duties). To the extent that D’Agostino asserts that Atkinson failed to

comply with certain requirements in the Handbook for Chapter 7 Trustees, the Handbook

does not set forth statutory requirements. See generally U.S. Dep’t of Justice, Executive

Office for U.S. Trustees, Handbook for Chapter 7 Trustees.

Second, the District Court acted within its discretion in denying D’Agostino’s

motion for reconsideration. D’Agostino asserted that he had obtained evidence

demonstrating that Atkinson should have been disqualified from serving as trustee in the

Hecker case because he and Hecker were acquaintances. As the District Court explained,

the evidence indicates only that Atkinson and Hecker were both members of the same

professional organization.

We have considered D’Agostino’s remaining arguments on appeal and conclude

that they are meritless. Accordingly, we will affirm.